In our June 18 post, Courts From Coast To Coast Address “Natural” In Food Labeling Class Actions, we reported on Northern District of California Judge Rogers’ preliminary determination to stay a mislabeling class action suit and refer a regulatory question to the Food and Drug Administration (FDA). Judge Rogers’ inclination surprised those of us who have closely followed these suits, as other judges’ efforts to seek FDA input have gone for naught, and because another judge in the same court had recently denied another defendant’s similar request for a stay.

Judge Rogers explained that FDA had issued nonbinding guidance indicating that it would not require on-label disclosure if a food product contained genetically modified ingredients, and had also issued an informal statement on what “natural” means in the labeling context. But as both parties in Cox v. Gruma agreed, “FDA has not addressed, even informally, the question of whether foods containing GMO or bioengineered ingredients may be labeled ‘natural’ or ‘all natural.’ Despite plaintiff’s eagerness to fill the “gaping hole in the current regulatory landscape for ‘natural claims and GMOs.” the judge wrote that “The FDCA and the NLEA unquestionably and squarely give that authority to the FDA.”

Under the Ninth Circuit precedent of Pom Wonderful v. Coca-Cola, Judge Rogers deferred to FDA, staying the Cox suit for six months and directing the parties to present and explain the question to FDA.